Contempt Of Court


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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158 Responses

  1. Avatar Mike Schilling says:

    Hmm, what happened in 2000 that would lead to widespread disrespect for the Court?Report

    • There have also been a number of rulings such as KELO, Citizens United, Raich, Oregon, Bong Hits 4 Jesus, and so on.

      For every ruling that any given person is likely to like out of the last 10 years (including Bush/Gore), they’re likely to hate two more.

      There have been waaaaaaaaaaaaaaaaay too many 5-4 rulings on issues that ought to have been 9-0 (or 0-9).Report

      • Avatar Mike Schilling in reply to Jaybird says:

        Kelo makes sense to me. It’s been going on forever, it’s how most of our sports stadiums get built, and it’s entirely within the power of the electorate in each state to make sure the practice stops. (And, since Kelo, 42 states have either eliminated or restricted it.) You know, federalism.Report

        • The fact that the states can pass laws to prevent an unconstitutional act is cold comfort. The fact that the supreme court upheld an unconstitutional taking of private property to give it to a corporation is one of those things that I find troubling.

          We’re not even talking about taking the land and making a highway overpass or a public park or even a habitat for spotted kangaroo mice which, while I disagree with it, at least has a comprehensible enough founding for me to not be surprised that I have to disagree with it.Report

          • Avatar Mike Schilling in reply to Jaybird says:

            You’re assuming it’s unconstitutional. When did that happen? Clearly, not before the passage of the 14th Amendment, probably not before the 5th was incorporated in 1897, and apparently not before the unanimous ruling of Berman vs. Parker in 1954. Nor do I recall any outcry when The Ballpark In Arlington was built in 1992. So, when?Report

            • Is banning gay marriage unconstitutional?Report

              • Avatar Mike Schilling in reply to Jaybird says:

                I don’t know. I think if you asked the guys who wrote the thing, you’d get a unanimous answer. And if you asked them about banning interracial marriage, you’d get the same answer. Even if you asked the Congress that passed the 13th-15th, they’d still say that of course there’s no right to interracial marriage, that’s just a Secesh scare tactic. But, you know, it’s not like we have a living Constitution: that’s just liberal claptrap.Report

              • Huh. Because my reading of the Constitution is that it is, in fact, unconstitutional. I’ve got a couple of different ways to get there, even.

                If, however, we wanted to stick to what the guys who wrote the thing thought, did they have an opinion on the Constitutionality of taking private property from citizens to give it to a corporation?Report

              • Avatar Mike Schilling in reply to Jaybird says:

                Did they make a distinction between “public use” and “public purpose”? No idea.Report

              • Or “public use” and “private use”. Whatevs.Report

              • “Living Constitutionalism” can make no pretense of not being subjective, and mostly doesn’t. The correct answer to “the justices’ decisions are sometimes influenced by their personal or political views” is yes, as a matter of fact, not opinion.Report

              • Avatar Mike Schilling in reply to Tom Van Dyke says:

                In 1967, Loving vs. Virginia was decided in a way that I think we all agree with. It couldn’t possibly have been decided that way in 1937. No relevant laws had changed.


              • Avatar Simon K in reply to Mike Schilling says:

                Original meaning versus original intent. Originalism doesn’t specifically care what the framers and amenders of the constitution expected people to understand the constitution as saying, but about what it actually says. One of the things it says is “… nor shall any State deprive any person of … liberty…. without due process of law”. Its not a necessary part of originalism to suppose that our understand of liberty has to be restricted to what would have been accepted when those words were written. That would be original intent, which Scalia himself has pointed out is deeply problematic.Report

              • Avatar Mike Schilling in reply to Mike Schilling says:

                And Justice Scalia would certainly tell us that outlawing interracial marriage is unconstitutional but outlawing same-sex marriage is not, by perfectly clear originalist reasoning, and why are we even discussing this instead of abortion?

                Color me unimpressed with his objectivity.Report

              • Avatar Simon K in reply to Mike Schilling says:

                I doubt that Scalia could justify that by originalist reasoning as such, since the text of the constitution says exactly the same thing both cases.Report

              • Oh, they can craft arguments. They’re just a little self-deceiving – just like those of originalists.Report

          • Avatar DensityDuck in reply to Jaybird says:

            Hey now, Kelo v. New London is at least as constitutionally-sound as Wickard v. Fillburne.Report

      • Avatar Dan Miller in reply to Jaybird says:

        There’s a difference between “this is a decision I disagree with” and “this is a transparently political decision, so much so that even the opinion says that it should never be cited again”.Report

      • Avatar LarryM in reply to Jaybird says:

        Bush v. Gore, much more than any of the other questionable rulings over the past few years, was tranparently political and poorly reasoned. Even a lot of the rulings that I disagree with are at least based upon coherent constititional theories. The reasoning in Bush v. Gore was so transparently bad that the court was compelled to state that it had no precedential value.

        Now, the average person doesn’t know enough about consitutional law to realize just how egregious the “reasoning” of the decision was, but the naked political nature of the decision is obvious to all. I’m only surprised that the aproval ratings are as high as 44%.

        And I’m not sure that it’s a bad thing that our attitudes are shifting so quickly. We SHOULDN’T respect the current court system. It’s healthy to disrespect the Supreme Court, a sign of relative sanity.Report

  2. Avatar Patrick Cahalan says:

    I think the big culprit here has been the legislative branch, actually… and yes, this is a “both sides do it” complaint, although they do “it” in different ways.

    When the Right passes a law and it gets overturned by the courts, it is “judicial activism”. When the Left passes a law and it gets overturned by the courts, it’s “moneyed interests buying justice with better lawyers”. There is occasional overlap between the two parties and the two tactics, but it’s a definite sawing back and forth motion that is cutting the log of confidence in the legal system in half.

    I have not once *ever* heard a legislator of either party say, “Well, we really wanted that to go through, but I’ll be honest it was pretty likely to be ruled unConstitutional because… well, c’mon, you read the thing. Still, we try…”Report

    • Avatar Kolohe in reply to Patrick Cahalan says:

      He’s not a legistlator per se (or per anything, but nonetheless) it sort of what Bush said about McCain Feingold when he signed it.

    • Avatar Chad in reply to Patrick Cahalan says:

      Could you please provide an example of the Left’s complaining about “moneyed interests” having resulted in the judicial invalidation of a law? With all due respect, I’m afraid you totally made that up.

      I agree with you that the delegitimization of the Court (and the courts) is the result of partisan polarization and hardball tactics in Congress. And I concede that the Democrats have not been entirely innocent in this regard. But the Republicans have been far, far worse. (Surprise surprise.)Report

      • Avatar Mike Schilling in reply to Chad says:

        You’ve never heard anyone say that the point of Citizens United was to allow corporations and rich people to buy elections? That’s very odd, especially considering that the point of Citizens United really was to allow corporations and rich people to buy elections.Report

        • Avatar Chad in reply to Mike Schilling says:

          But Liberals do not point to Citizens United and say the the Court majority *itself* was “bought” by dark money. So I think it’s unfair to blame Democrats for delegitimizing the Court by claiming (without foundation) that they demagogue the Court as being bought and sold. Stated differently, Patrick’s comment seemed to engage in some unfair (and unfounded) false equivalence to me.Report

          • Avatar Patrick Cahalan in reply to Chad says:

            > But Liberals do not point to Citizens United and say
            > the the Court majority *itself* was “bought” by
            > dark money.

            I guess you know different Liberals than I do.

            Here’s a specific example: every single gun control law that has ever passed and been struck down by a judicial review. Here’s a pre-Heller article that is an example.

            That happens because “the NRA and the gun manufacturers fund the lawyers that try the cases”. Well, this guy also blames the media. But everybody blames the media, too.

            This is a case where you see crossover and the primarily-used-by-conservatives-excuse gets play on the left… you’ll also see “the Right stacks the courts with sympathetic judges who strike down these laws that are to save the children!”Report

            • Avatar Chad in reply to Patrick Cahalan says:

              I still question your example, Patrick. Liberals do not believe that there is anything wrong with judicial advocacy of unorthodox constitutional views, where such advocacy is funded by the deep- pocket proponents of a change in the law. (Otherwise, the gay rights movement, as it is litigated in the courts, would be anathema to liberals.) To the contrary, I would posit that liberals view such constitutional advocacy as a vital part of self-governance in a constitutional system.

              As for you position that liberals complain about the Right stacking the courts with “severely” conservative jurists: there, you are on firmer ground. But, given that that is exactly what the Right has done (see my post below), I do not think you can fault liberals for pointing this out. Moreover, liberals do not demagogue as “judicial activism” any and all decisions with which they disagree, or go after the very independence of the judiciary (think Newt Gingrich), as do modern-day conservatives.

              To reiterate: I do not think that the Democratic Party is entirely innocent in delegitimizing the judiciary, but the GOP has been far far worse in this regard, and to argue otherwise, I would suggest, is to engage in unwarranted false equivalence.Report

              • Avatar Patrick Cahalan in reply to Chad says:

                I’m not arguing otherwise. Well, I’d quibble with the framing of, “not entirely innocent in delegitimizing the judiciary”… and put it more as, “They’re drilling holes and the GOP is chopping away at the floorboards with an axe”. Either way you’re going to sink the boat, eventually. If you don’t want to sink the boat, then start taking care of the boat.

                I know, I know, exigent circumstances.Report

    • I remember going nuts when Bush signed McCain-Feingold despite his misgivings over whether it was Constitutional. “Let the courts sort it out”, he seemed to be saying.

      That’s impeachable, if you ask me.Report

      • Avatar Jaybird in reply to Jaybird says:

        Dang it, Kolohe beat me to it.Report

      • Avatar Burt Likko in reply to Jaybird says:

        “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

        “So help me God” is optional. “Preserve, protect and defend the Constitution of the United States” is not. Signing legislation known to be unconstitutional does indeed seem inconsistent with the mandatory part of that oath, particularly when one claims an independent duty to interpret the Constitution (as Bush did). If the law is thought to be unconstitutional, it should be vetoed and the veto statement should indicate the reasons why, perhaps offering suggestions for how a new bill could be drafted that would satisfy the President’s Constitutional concerns. This is likely another real equal opportunity knock, though; I’m confident that I could find a signing statement by either Clinton or Obama expressing misgivings about the Constitutionality of a bill one of them signed into law too.Report

        • Avatar Jaybird in reply to Burt Likko says:

          While I want to say that I remember Clinton having misgivings about DOMA, I don’t know how much of that is my brain rewriting history. I do know that Bush’s statements about McCain-Feingold are the first time I’ve ever heard a President just COME OUT AND SAY that he had severe misgivings but he was going to sign it anyway.Report

  3. Avatar Tod Kelly says:

    I certainly won’t disagree with either Mike or Pat above, but I’ll add another piece that I see:

    One of the political strategies I saw grow in the 90s and 00s was the “legislation for the purpose of point scoring” tool. In Oregon in the late 90s, for example, the Republicans slimly held both our House and Senate, but had a Democratic Governor that let them know well in advance what legislation he would veto. Rather than work to some level of compromise toward their goals, the Rs instead decided to pass wildly radical and even unconstitutional legislation that made sure they were always in the news. At the same time they were doing this in the legislature, they began doing the same thing through the initiative process. They clearly knew that most of what they passed would either be vetoed or struck down by courts (most of them were lawyers, after all). But they did it anyway, as a way to set up negative campaigning in future elections.

    So, for example, they might pass legislation that certain groups (like unions) couldn’t give money to political candidates while others (trade associations) could, knowing that it was clearly unconstitutional. But it gave them a rallying cry that continued to build momentum. They weren’t a group of do-nothings that passed legislation they knew wouldn’t stand up, they were victims of a conspiracy that was working against the people, and at the heart of that conspiracy were the activist judges that worked in secret to subvert liberty. This got them a lot of donations, and fueled a passion in our state’s minority party that frankly just was never there before.

    I see the same thing with things like the DOMA – clearly everyone knew that it wouldn’t stand judicial review. But passing it gets you two political wins – the win of using a wedge issue to drive people to the voting booth initially, and confirmation to your base that the system is out to “get you” down the road when the inevitable striking down occurs.

    I think that this deterioration of our confidence in the courts is cynically deliberate, and it’s been done by the parties.Report

    • Avatar Morat20 in reply to Tod Kelly says:

      Ah, yes — that started to be common awhile back. And it’s a way of throwing red meat to the base — pass something KNOWING it won’t pass Constitutitonal muster, that way you can:

      1) Take credit with your base for voting for it.
      2) Get more credit with your base for pointing out that they have to keep voting for you and your party so you can appoint the right judges.
      3) Never have to deal with the actual reality of passed legislation. Or worry about it working.

      Scores of symbolic bills, passed solely in the knowledge that the courts would block it.

      As for the courts, well…they’ve made some big decisions lately that have been flatly irritating everyone, including some that have sharply overturned long-standing precedents or otherwise made rather major swerves in the judicial path.

      Such things happen, of course. Society moves on, understanding changes, and points of view shift. But when too many happen too quickly in a row, it looks less like “Society has come to realize that telling two people they can’t marry because one is black and one is white is just bluntly racist as all get out, and frankly unconstitutional because you’re treating people totally different based on skin color” and more like “Wahoo! Let’s remake America in our image!”.

      It wasn’t Bush v Gore. Or Kelo. Or Citizens United. Or a lengthy string of cases chipping away at our rights vis a vis the police (new professionalism my foot). It’s all of them, so close together.

      So yeah — you have courts forced to kick off red-meat laws and turned into political fodder for it (even though those laws passed solely to GET said fodder). You have SCOTUS weighing in on cases in a fashion that’s starting to raise eyebrows well outside the uncaring voters and into deeper legal circuits.

      And, well, Bush v Gore really was an awful decision. And awful for the strangest reasons. It wasn’t awful in “tough call, someone has to make it” or “constitution is forcing my hand” or even “everyone knows this is unconstitutional but popular and it’s time someone finally put their foot down and said ‘You know what? Change the Constitution if you want this, i’m tired of ducking it and trying to work around this BS'”.

      It was just..bad in the way middle management can be bad, where you can see the little wheels turn as some line manager decides on his conclusion and then flogs his minions until they build a scaffolding to get there bad.Report

  4. Avatar CK MacLeod says:

    “No reason to despair”? If you say so. But here’s a crack at what despair says, perhaps unreasonably: It wasn’t just Bush v Gore, and it wasn’t just the narrowly political nature of Bush v Gore, and it wasn’t even the contradiction between the supposed strict constitutionalism of conservative judges and their deemed necessary resort to a less than strict, arguably extra-constitutional interventionism. Originalism becomes self-undermining, since in the end it’s the purest form of legal positivism, and tends to produce absolute confrontations between need and practice, natural justice and formal justice, exigency and ideal. Bush v Gore was pure exigency and defined as such – in other words the self-falsification of the rule of law. It completed the comprehensive exposure of the arbitrariness and insufficiency of the Constitutional system, as the Court called upon and irrevocably spent 200 years of traditional deference. The conduct of the Court furnished just one element in the vast self-satire that that election produced, but it’s a crucial one, since the decision of the court is one of the main ways that the god of the American secular religion, the mysterious Popular Sovereign, speaks. When we no longer hear Her, or believe we do, the system is rubbish, hardly fit for recycling. The Conflict Formerly Known as the War on Terror and the rest of the ’00s up to this very day continued a descent into post-constitutional governance, which the fetishists of the Constitution are implacably determined to hasten. West Wing becomes Veep. Obamessiah turns into the psychopathic janitor-in-chief. A figure like Mitt Romney – open fraud, an ambulatory non sequitur whose nonsensical emptiness is his main redeeming quality – becomes theoretically electable as Head of State and Government. The words “citizens united” come to mean “citizenship annihilated,” we wait for the economy to vote for or against itself to no purpose at all, and at every crisis the mask slips away further, revealing a coven of vampires amidst a mass of zombies. To continue functioning at all, the system will have to finish discarding itself, likely to the applause of those from among the vast majority who even notice.Report

    • Avatar Burt Likko in reply to CK MacLeod says:

      Yes, despair is premature. The courts are still obeyed reflexively even if the bench officers and their decisions are used as political footballs. Political pushback to unpopular judicial decisions are yet peaceful. We have not returned to the days of impeachment of Supreme Court justices simply because they render unpopular opinions, although some politicians have recently grandstanded to that effect despite being ostensibly smart and educated enough to know better.

      There are problems and they deserve our concern and attention. But we do not yet stand upon the edge of the lawless abyss. The system does not need to be burned to the ground and replaced in order to have something that is both effective and praiseworthy. We can still restore respect for the courts and the law, and we should work towards that goal.Report

      • Avatar CK MacLeod in reply to Burt Likko says:

        Just to be clear, I wasn’t advocating we burn the system down. Was just sniffing the smoky aroma you wafted in my virtual direction.

        The courts are still obeyed reflexively even if the bench officers and their decisions are used as political footballs.

        This is a positive? Reads like one step short of “The courts are no longer obeyed reflexively because the bench officers and their decisions are seen as ‘political.'”

        We can still restore respect for the courts and the law, and we should work towards that goal.

        Sure that’s “our” job? Would make us hopeless hypocrites if they are not worthy of respect.Report

        • Avatar Burt Likko in reply to CK MacLeod says:

          Yes, I think this is “our” job. Are we not all stakeholders in the integrity of the legal system?Report

          • Avatar CK MacLeod in reply to Burt Likko says:

            “stakeholders in the integrity of the legal system”

            Not sure what that means, frankly. If it means it’s in our interest to have a legal system not subject to corruption and crude politicization, yet we have determined that the system is corrupt and crudely politicized – among other problems that may not be expressed precisely under the word “integrity” – then we might do violence to our own integrity to call for respect for the courts and the law as currently constituted. There might be other reasons for us to offer respect, and, differently, to call for respect for the violated ideals, but that would not be the same as “working to restore.” Restore respectability, if possible, and the work might be a lot easier. If you restore respect without restoring respectability, then what are you working for?Report

            • Avatar Dan Miller in reply to CK MacLeod says:

              +1. That’s what I’d been trying to think of a way to say.Report

            • Avatar Scott in reply to CK MacLeod says:


              We are all stakeholders b/c the outcomes effect all of our lives. Kind of like folks who don’t vote in elections and then complain about the laws politicians pass or folks that get out of jury duty then complain about the state of our justice systemReport

              • Avatar Mike Schilling in reply to Scott says:

                Burt and/or Scott: can you explain what some concrete steps toward restoring respect for the courts and the law, might be?Report

              • Avatar Will H. in reply to Mike Schilling says:

                The Fourth Amendment has been adjudicated practically out of existence.

                Prosecutorial immunity needs to have sane limits. Recently, two federal prosecutors were disciplined for purposely withholding information critical to the defense of former Sen. Ted Stevens. If they can do it to a Senator and get away with it, they can do it to anybody.

                A uniform statute of limitations for actions under 43 USC 1983 would go a long ways.
                The fail-safe see-no-wrong-doing “judicial review” needs to be removed as an excuse for tacit complicity in dismissal of civil rights actions. Each and every felony crime under the US Code is subject to judicial review— however, in the civil rights context, that judicial review is available means that no manner of wrong-doing could ever possibly occur.

                Just off the top of my head.Report

              • Avatar Mike Schilling in reply to Will H. says:

                Those are things courts can remedy. What can the rest of us stakeholders do?Report

              • Avatar Will H. in reply to Mike Schilling says:

                I don’t think it can be remedied by the courts. (without some rather sharp turns away from existing precedent)
                I think legislative action is required.Report

              • We can take some time to read and understand a new decision before immediately rushing to criticize it. Kelo and Citizens United are good examples of how the right and the left, respectively, responded with hyperbolic outrage to decisions that did not deserve such responses. Both were called fundamental threats to the foundations of our civil society — property rights and democratic elections — and neither were that. There is still private property as against the government, and there is still functional democracy as healthy as it ever was, in the wake of these unpopular opinions. Neither case broke any dramatic legal ground; Citizens United retraced reasoning from Buckley v. Valeo and Kelo followed almost exactly the reasoning from Hawaii Housing Authority.

                This does not mean that you have to agree with either or both decisions, or that you need withhold objection to any new case. What I suggest is that we both take the time to understand the actual reasoning in the case before criticizing it sternly, and that when offering such criticisms, that such criticism be appropriate to the actual holding and scope of the case.

                (Libertarians get to answer for their reaction to Florence v. Burlington earlier this year, too, although their outrage was at least not hyperbolic.)Report

              • Avatar Mike Schilling in reply to Burt Likko says:

                And Bush vs. Gore followed the precedent of the 1876 Electoral Commission, even down to the party-line vote.Report

              • Avatar CK MacLeod in reply to Scott says:

                I’m aware that’s a widely held view, but it’s based on assumptions I may not share, and that are in fact a main subject of the “complaint” we’re discussing. Why would I need to be trivially complicit in the operation of some absurd or unjust institution in order to “complain” about it? Do I need to be a shareholder in chemical company to “complain” about the chemicals it dumps in my water supply? It is the fact that the “outcomes affect all of our lives” that gives me whatever right I have to complain, not the fact that I may have submitted one vote among millions or that I may have been happy to sit on a jury.Report

              • Avatar Scott in reply to CK MacLeod says:


                Which assumptions do you not share? Comparing complaining about gov’t vs. a chem co. is silly given that your participation in the gov’t can lead them to enact environmental laws. Yes, you can always complain without participating but no one will really take you seriously if you don’t participate.Report

              • Avatar CK MacLeod in reply to Scott says:

                Scott, one assumption would be that my particular vote is an actually meaningful act of “participation” in governance. There are a wide range of ways that I might participate in or relate to government either individually or through some group or association that have nothing to do directly with whether or how I as an individual voted, and that might have much greater effect on the behavior of the chemical company than whether or how I voted.

                This side-discussion is a bit off-topic except that it also reflects a moment in the process of decay of institutions. What was so GREAT about the Citizens United decision was that it brings heightening disgust with and alienation from two central institutions of republican democracy, with the prospect of contaminating the entire superstructure, and was sponsored and supported by people who imagine themselves to be the purest patriots of all. Darn near tragic, if not Satanic.Report

              • Avatar Scott in reply to CK MacLeod says:


                I agree that participation falls along a spectrum of activities, however I have yet to see any group pushing an issue (right or left) that doesn’t ask their supporters to vote.Report

    • Avatar Kolohe in reply to CK MacLeod says:

      I like this comment, if one quibble. Romney is not really a harbinger of doom (or DOOOOOM!!!), as the Nation has certainly survived empty suit naked opportunists before (and will certainly suffer them in the furture)

      And we are all indeed stakeholders in the integrity of the legal system, (see for example Afghanistan, and most of the rest of the so called third world where legal systems lack all sense of integrity and there is just a complete lack of faith in institutions in general). Yet, the system need not be perfect, but perhaps just better than it has been. Or even perhaps, just simply not get any worse.Report

      • Avatar CK MacLeod in reply to Kolohe says:

        There’s empty suit naked opportunists… and then there’s Mitt. Who among presidents or even among major losing candidates would you compare to him?

        But I should clarify, it’s not just Mitt’s emptiness, or his flip-floppery, that I personally find so remarkable (though I’m not sure whether there’s much further to go without invoking the supernatural). It’s also the schizoidal nature of his personality, relating to his nearly unmentionable religious affiliation, that I find curious and telling. It’s part of what makes him such a non sequitur, rather than just your usual confidence man.Report

        • Avatar Kolohe in reply to CK MacLeod says:

          “Who among presidents or even among major losing candidates would you compare to him?”

          In no particular order (except for the first one): Richard M. Nixon, James G. Blaine, Warren G. Harding, John F. Kennedy, John F. Kerry, and perhaps even Barrack H. Obama. And that’s putting aside US Grant, who was not an empty suited naked opportunist himself, but was up to his eyeballs in them in his Administration. (as were most of the 19th century 2nd half Presidents) (and this list excludes John Edwards from the definition of major losing candidates)

          (note that this is ipso facto not a particularly ringing endorsement of Willard M. Romney)Report

          • Avatar CK MacLeod in reply to Kolohe says:

            Well, that’s a list, not a comparison, and “empty-suited naked opportunist” is your description, not mine. To me, Mitt represents a principle of pure adaptation to contingency, as an expression of the indifference of free market capitalism to any value that does not emerge from its own processes. He is not an empty suit, but there is no ought to his is. It cannot even be discussed. All successful politicians must by definition adapt to the system which in its pure form – something to be feared – is the system of empty opportunism (we hold empty opportunism to be self-evident). The figure of Mitt represents its nothingness exquisitely, but it has at least as much to do with us and where we are as it has to do with poor rich Mitt.Report

            • Avatar Kolohe in reply to CK MacLeod says:

              “an expression of the indifference of free market capitalism to any value that does not emerge from its own processes.”

              You say that like it’s a bad thing. (and I’m not entirely kidding. Speaking of contemptible court cases, see Plessy v Ferguson for an example when the values of free market capitalism are slapped down because they conflict with the (then) values of society).Report

  5. Avatar Sam says:

    Wait, there are Americans dumb enough to believe that there are judges making decisions based upon something other than their own political biases and beliefs? Really?Report

  6. Avatar Chad says:

    A near-majority of the current Justices consist of right-wing ideologues. (See Richard Posner & William Landes, “Rational Judicial Behavior: A Statistical Study,” 1 J. Legal Anal. 775 (2009) (concluding that four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt are currently sitting on the Roberts Court), available at So what do you expect?

    In addition, keep in mind that the last two of the Court’s so-called “liberal” justices to retire were appointed by Republican presidents. (Souter was appointed by G.H.W. Bush in 1990, Stevens was appointed by Ford in 1975.) The Court’s current swing voter — the tenth most conservative Justice to serve since the FDR Administration –was similarly a Republican appointee (Kennedy was appointed by Reagan in 1988), as was his female ideological counterpart on the Rehnquist Court (O’Connor was appointed by Reagan in 1981). In contrast, the most liberal member of the current Supreme Court (Ginsberg) is still less liberal than any of Earl Warren, William Brennan, or Thurgood Marshall, among others, often by quite a substantial margin.

    When a purportedly non-partisan, non-ideological body is as far to the extreme right at the current Supreme Court, it is hardly surprising that Americans are going to detect that “[J]ustices’ decisions are sometimes influenced by their personal or political views .” While Bush v. Gore is an easy scapegoat, I actually do not think it has much to do with it. (Indeed, I believe that studies of public opinion showed no long-term impact on perceptions of the Court’s legitimacy following Bush v. Gore.)Report

    • Avatar Jaybird in reply to Chad says:

      Kennedy stole Doug Ginsburg’s seat!Report

      • Avatar Bad-ass Motherfisher in reply to Jaybird says:

        You mean Bork’s seat?Report

          • Avatar dexter in reply to Jaybird says:

            If you don’t know who Bork is you can find more about him by going to google and typing in “Is Bork Govornor Romney’s constitutional advisor”.Report

          • Avatar Bad-ass Motherfisher in reply to Jaybird says:


            Here’s how Kennedy came to the Supreme Court. In 1987, Lewis Powell resigned, and Reagan nominated Robert Bork to replace him on the court. Bork was really the first shot in the modern judicial wars: before that time, presidents of both parties nominated justices from the broad mainstream of jurisprudential philosophy. But Bork was the first radical conservative nominee in modern times–an originalist, a very partisan Republican (he had a role in Nixon’s post-Watergate “Saturday Evening Massacre), and a holder of what were then considered fringe views (for instance, opposing expansive views of free speech rights, or the public accomodations portions of the Civil Rights Act).

            The Democrats, led by Edward Kennedy, waged a pretty ugly battle against Bork’s confirmation, and Reagan eventually withdrew the nomination and nominated Douglas Ginsberg in his stead. But when he confessed to having tried marijuana, that nomination was withdrawn, as well, and Anthony Kennedy was nominated.Report

            • Avatar Simon K in reply to Bad-ass Motherfisher says:

              Many of Bork’s views would still be considered very extreme. None of the conservative justices currently on the court has threatened to overturn Roe, or rule the civil rights act unconstitutional. They may secretly wish to do these things, but if they continue to keep it secret as well as they have been doing, I don’t really care.Report

    • Avatar Morat20 in reply to Chad says:

      I think Bush v Gore hurt the court among a more dangerous constituency — the elite. It was transparently self-serving, and so awful that it shocked a number of people out of a sort of happy slumber.

      These people make waves, and while the public at large might not say “Grrr! BUSH V GORE was the tipping POINT!”, that doesn’t mean it’s not the case.

      The right’s always been deeply suspicious of the courts, but the middle and the left — and the opinion makers in general — gave it a hefty deference. They weren’t supposed to be partisan (even when they were) and due to their slow-moving nature and the whole concept of precedence, they rarely made great changes (and rarely many at once).

      Bush v Gore was an eye-catcher. I think a lot of those opinion makers, those elites (legal or otherwise) snapped to and started watching more carefully. And since then, the Court has not been shy about kicking over long-standing precedent and generally trampling over what was considered “settled law”.

      There mere fact that whats-his-face at Volokh Conspiracy’s (the one with the Lochner fetish. Randy Barnett?) dumb broccolli argument got so much time at SCOTUS for ACA is a bad sign. Blame the Birch Society, perhaps. But there’s a reason respected jurists nobody considered the individual mandate a legal stretch until it hit SCOTUS.

      After all, it was the GOP’s own proposed solution and the basis for Bush’s proposed Social Security Privitization scheme — the only people thinking the Court might revisit 70 years of precedent were the ever hopeful and the deluded. Everyone else figured it was settled law.Report

      • Avatar Chad in reply to Morat20 says:

        Very good/interesting point, Morat80. I think you may be onto something very important and not all-that-widely discussed.

        It will be interesting to see how the Court rules on the constitutionality of the ACA. If the law is invalidated, whether in part or in its entirety, then the delegimization of the Court among elites will be complete. The long-term implications of that are … well, I think we’ll be entering unchartered territory, to be honest.Report

        • Avatar Patrick Cahalan in reply to Chad says:

          I will bet $5 that the law is invalidated at least in part. And given the way the government chose to defend it, I can’t see how the “part” isn’t going to be pretty big.Report

          • I take your comment to mean that the law was poorly defended. If it had been better defended, where do you think it might be in likelihood of surviving in full or in large part?Report

            • Avatar Patrick Cahalan in reply to Will Truman says:

              I don’t know that it was poorly defended.

              I think it was defended on the idea that the way to make it hardest for the judges to rule against it was to tightly couple the mandate to everything else. Thus they could only throw out the mandate if they threw out everything else.

              I think this was a miscalculation (it constrained the court into two possible decisions, and if nothing else the court does not like being put in the position of having their flexibility on decisions reduced).

              In any event, from the reporting so far, I don’t think the mandate is going to stand. So if it doesn’t, it’s going to be hard for the justices to come to a consensus other than, “try again”, because the ones that are predisposed to throwing the whole thing out now have the government more or less tacitly suggesting that this is the only viable decision anyway, so those who *aren’t* predisposed to throwing the whole thing out have a big hill to climb to keep anything.

              It’s sort of the opposite of the court’s general historical response, which has been to keep what it could and throw out only what it (the court) thought it must.Report

              • Avatar Morat20 in reply to Patrick Cahalan says:

                That’s not a mistake, it’s sound legal tactics — were they in front of any other court of the last 50 years.

                Necessary and proper, right?

                The individual mandate is critical to the ACA — it’s how it pays for everything else. The fundamentals of insurance demand that everyone pays — you can’t have free loaders, it drives the cost up for everyone else.

                Which is why no one was really thinking it was a constitutional issue, because the Commerce Clause has not only been interpreted fairly broadly, the mandate was square inside even a more limited view.

                Regulating the healthcare insurance market is certainly within Congress’ purview, because health care happily crosses state lines. (Even if the insurance company doesn’t, I do — and my insurance pays for my illnesses regardless of where I am).

                Congress mandated it do a bunch of things, and because without full (or close to it) participation, it then tacked on a requirement (enforced via the tax code) that everyone buy in. On the theory that, a few rare folks aside, everyone ultimately interacts with the health care market.

                Without the mandate, the rest will fall apart. That’s as necessary as it gets.Report

              • Avatar DensityDuck in reply to Morat20 says:

                Remind me again, then, why they didn’t just raise taxes to pay for health care.Report

              • Avatar BlaiseP in reply to DensityDuck says:

                Romney didn’t, in Massatwoshits. Oh the hosannas and market-oriented huzzahs from all quarters when he did it there.

                Remind me why Romney’s running away from these positions now.Report

              • Avatar Will Truman in reply to BlaiseP says:

                Romney didn’t, in Massatwoshits. Oh the hosannas and market-oriented huzzahs from all quarters when he did it there.

                Not really, no. I was a conservative supporter of Romney’s efforts* and more of my compatriots disagreed with me than agreed. It wasn’t the sort of shrieking we’re hearing now, but there was a lot of resistance to the idea. The modest support it had was mostly gone by 2007, except for the Heritage Society, which stuck by it.

                There were actually some interesting discussions.

                * – I ended up opposing PPACA, because I wasn’t in favor of rolling it out on a national level, but I don’t feign outrage at the concept as a lot of its opponents did. And I didn’t oppose the mandate then and don’t oppose it now (though I do think there may have been other ways of going about it).Report

              • Avatar Scott in reply to Morat20 says:


                Necessary and proper is only for the enumerated powers. Clearly you weren’t paying attention in civics class.Report

              • “I don’t know that it was poorly defended.”

                At least as I read the transcripts, Kennedy was practically begging for the government to provide some sort of argument that the Commerce Clause stretches this far, but not farther, where “this far” was enough to encompass the ACA, but not broccoli. When someone as ill-informed as myself knows in advance that that’s likely to be the question for at least one of the justices, it was very disappointing that the government wasn’t better prepared.

                Personally, I think Congress put the government in a tough position when they included the Commerce Clause bit in the ACA in the first place. I always thought the justification part of the bill, if it really needed one, should have been along the lines of “No one has argued that we can’t collect taxes and use them to pay for medical care for citizens (eg, Medicare). For various reasons, now that we’re going to do that for many more people, we’re going to write the law to route the money from taxpayers to insurance companies to care providers, rather than through the government.” Based on questioning, my expectation is the four liberal justices will approve the ACA on that basis and ignore the whole Commerce Clause thing, the three hard-core conservatives will reject the ACA on Commerce Clause grounds, and Kennedy (and possibly Roberts himself) could go either way. If Roberts supports it, I think it’s purely ideological — the man appears to have never ruled against corporate interests in his life, and the ACA is very, very good for the big insurance companies.Report

              • Avatar Johannes in reply to Michael Cain says:

                Of course, Kennedy’s desire for limits requires overruling John Marshall’s analysis in Gibbons v. Ogden, from 1824, which expressly found that as long as the law in question deals with interstate commerce, no further limit is imposed by the Constitution. It’s another demonstration of how contemptuous this Court is, not just of precedent, but of founding precedent. Just like Bush v. Gore, which arrogated to the Court power to interpret state law contrary to the rulings of the state’s highest courts, and the Iqbal and Twombly cases, in which the Court junked half a century’s interpretation of a statutory rule, which had been reenacted again and again, just because the Court decided it would be better policy to make it easier to throw out civil suits.

                The perception that the Rehnquist and Roberts Courts have agendas is richly deserved.Report

              • Avatar Patrick Cahalan in reply to Michael Cain says:

                @ Michael Cain

                By “I don’t know that it was poorly defended”, I meant mostly that I’m not qualified to have much of anything but a layman’s opinion 😉Report

              • Avatar DensityDuck in reply to Patrick Cahalan says:

                ” it was defended on the idea that the way to make it hardest for the judges to rule against it was to tightly couple the mandate to everything else. Thus they could only throw out the mandate if they threw out everything else.”

                Was it Solzhenitsyn, who said “we believed that if we simply reported everyone we could think of, then they would give up on the idea of purges, because there was no way that sane people could bring themselves to send millions upon millions of artists and writers to the gulag. We were wrong.”Report

              • Avatar Will Truman in reply to karl says:

                Duck to English translator: Be careful when you double down on the basis of what you think your adversaries are not willing to do.

                (I think. Sometimes my Duck-English translator fails me.)Report

              • Avatar karl in reply to Will Truman says:

                Thanks. BTW, is there a variation of Godwin’s Law that covers Stalin? It might come in handy now and then.Report

              • Avatar DensityDuck in reply to Will Truman says:

                Yes, exactly.Report

      • Avatar Jaybird in reply to Morat20 says:

        The broccoli mandate example was a lot dumber before Michael Bloomberg’s soda ban, I tell you what.Report

      • Avatar Mike Schilling in reply to Morat20 says:

        You might recall that the conventional wisdom in 2000 was the the Court wouldn’t inject itself into vote-counting in Florida, which was obviously a state matter.Report

      • Avatar Mark Thompson in reply to Morat20 says:

        “But there’s a reason respected jurists nobody considered the individual mandate a legal stretch until it hit SCOTUS.”

        I’m not at all certain this is true. The issue of the constitutionality of the individual mandate on interstate commerce grounds was raised very, very early on, while PPACA was just starting to make its way through Congress. I thought at the time, and continue to think, that it is constitutional under those grounds based on existing precedent, but it’s a comparatively close issue. A big part of the problem here is that the Obama Administration shot itself in the foot in the late stages of the debate by suddenly- and unnecessarily – trying to argue that the mandate is not a tax, which I wrote about at the time here:

        I stand by every word of that piece today, except that it seems likely the law will get overturned; back then I was essentially expecting something like a 5-4 or 6-3 decision upholding it on interstate commerce grounds, but a 7-2 or 8-1 decision if it were pursued on taxation grounds.Report

        • Avatar greginak in reply to Mark Thompson says:

          Well yeah, but the IM had been discussed for 20 years and nobody ever said it might be a constitutional issue. It only became an issue when the D’s started to push it and put it in their plan.Report

          • The thing is that until there’s an actual bill with an actual chance of passage, there’s not going to be much reason to discuss questions of constitutionality. Until that point, you’re dealing purely with hypotheticals, and how a mandate, or any other policy initiative, is structured is going to make a huge difference to Constitutionality arguments. That is especially true of the mandate, since there are so many different ways to structure a mandate – you can make it criminal to lack insurance, you can make it fine-able, you can make it a universal tax, etc.

            And keep in mind that the Obama Administration’s decision to deny that the mandate is a “tax” put the commerce clause arguments into play in a way that they otherwise wouldn’t have been. The fact is that, as structured, the mandate really does function as a tax, but what constitutes a “tax” and what constitutes a “penalty” quickly becomes a gray area when the chief officer of the entity arguing for the policy publicly and unequivocally states that it is not a tax.Report

            • Avatar Morat20 in reply to Mark Thompson says:

              Except the reasoning is entirely the same as with Bush’s Social Security privitization concept. You paid into one or the other, NO CHOICE.

              The tax/penalty thing is another area where SCOTUS has decided to go off the rails — historically speaking, SCOTUS has been of the mind that if Congress has the power to DO a thing, the exact methods are immaterial — or close to it. (it’s actually worse because Obama isn’t Congress. What his administration says means squat about whether something is a penalty or a tax).

              SCOTUS historically had no interest in getting involved in a magic words slapfight, sending Congress back to rewrite a bill that had the exact same end-effect because they didn’t say the magic words.

              The reasoning being simply that if Congress passed it, and Congress could Constitutionally do it, then the exact route didn’t matter — what would be the point of sending them back to change a few words around?

              Which makes the tax/penalty argument deeply suspicious — because it’s not a legal invalidation (Congress can do X, after all!) but a political one — it invalides the law because Congress’s makeup has changed and it won’t pass again.

              And interjecting themselves into politics is what SCOTUS has, historically, tried to avoid. It’s the equivilant of a SCOTUS veto to the law, rather than their previous stance — which was if Congress didn’t like it anymore, it was up to Congress to repeal it. Not send it to the Supreme Court, claim it used the wrong magic words and had to be redone, then let a slightly changed electoral landscape remove it from existance.

              Because that feels, true or not, nakedly political. More so if you realize it’s a repudiation of previous behavior.

              Sorta like Bush v Gore.Report

              • Avatar Mark Thompson in reply to Morat20 says:

                And interjecting themselves into politics is what SCOTUS has, historically, tried to avoid.

                I don’t want to speak for Burt, but I think one of the key implications of his “Great Cases” series is that this is not actually true, but is instead a false perception borne of a nostalgic romanticism about the past.

                SCOTUS historically had no interest in getting involved in a magic words slapfight, sending Congress back to rewrite a bill that had the exact same end-effect because they didn’t say the magic words. The reasoning being simply that if Congress passed it, and Congress could Constitutionally do it, then the exact route didn’t matter — what would be the point of sending them back to change a few words around?

                This is incorrect. Contrast Bailey v. Drexel Furniture Co. (The Child Labor Tax Case)(1922)(which has since been severely limited) with US v. Kahriger (1953). In particular, focus on the holding in Kahriger that “unless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.” The entire justification for the mandate is to make those who choose not to obtain insurance at least partially pay for the systemic costs they impose, on average (aka, address the adverse selection problem). The problem is that it’s really difficult for a court to allow you to get away with calling it a tax when your client is running around making official statements that it’s something else entirely.

                IIRC, this became a big problem for the Administration in a good number of the trial courts, and I’m honestly not sure how hard they even tried to press the argument since it was more or less official policy to call it not a tax.Report

            • Avatar Michael Drew in reply to Mark Thompson says:

              But Mark, do you really hold that if nothing about the law were different, but the president had called it a tax, that the mandate wouldn’t be in serious trouble at SCOTUS right now? For that matter, if the thing were called a Personal Responsibility Tax and was offset by a Minimum Coverage Credit of an equal amount in the law, that the law would not be in trouble at SCOTUS for such a “mandate” right now? I have my doubts that it wouldn’t.Report

              • I am confident it would at least be enough to bring Kennedy around. I suspect there’s a good chance you get Roberts and Alito as well. The commerce clause’s meaning has been an ideological football for decades on the Court, and at this point it’s so all over the map that you can justify almost any result with it. The taxation power jurisprudence is not remotely that kind of a football and is fairly unambiguous.

                I also seem to remember at least one or two of the early cases on this being fairly explicit about that issue being decisive (in fact, I vaguely recall you being the one to bring one of them to my attention as lending credence to my point).Report

              • Avatar Michael Drew in reply to Mark Thompson says:

                There’s certainly credence to your point, and them making mention of it certainly adds it. But that doesn’t mean that in a different world when push came to shove some of these jurists wouldn’t find other reasons to have a problem with the mandate (not to mention other parts of the law), even it was structured explicitly as a tax and was called that in public, and that it wouldn’t be in trouble at SCOTUS. I’d note that a law facing a strong likelihood of being upheld 5-4 and a maybe decent chance of 6-3 is still being in some trouble at SCOTUS. Just being reviewed at SCOTUS after divided appellate rulings is a non-negligible degree of jeopardy for a law to face.Report

              • Avatar DensityDuck in reply to Michael Drew says:

                “[Does anyone think that] if the thing were called a Personal Responsibility Tax and was offset by a Minimum Coverage Credit of an equal amount in the law, that the law would not be in trouble at SCOTUS for such a “mandate” right now?”

                If they’d got PPACA funding from “collect taxes” and “necessary and proper” rather than some weird twisting of the commerce clause? Yes, I think that’s exactly the case.Report

      • Avatar Will in reply to Morat20 says:

        I think your point about the elite is very true. Sometime after Bush v Gore I went to a debate put on by a Manhattan legal society. I was a paralegal thinking about law school and one of the partners of the very prestigious Wall St law firm where I worked was participating. They had also got one of the lawyers from the Bush side of the table to participate.

        Now, I admit, I had no idea what was going on and didn’t know much about the law at the time. I was just out of college and mostly thinking what my chances were with one of my fellow paralegals (As it turns out, they were good!). But I noticed a few things:

        – This large, fancy auditorium down by Wall ST was PACKED on a Tuesday night with wealthy, old, white lawyers in very expensive suits.

        – They were PISSED.

        And they weren’t pissed in the “my candidate didn’t win, so even though I’ll save a few hundred thousand this year on Bush’s tax cuts, I’m pissed because I’m a democrat” kind of way. But they were pissed on a fundamental level. One of the fellows on stage (famous-for-a-lawyer, been on the Daily Show, obscenely wealthy, etc.) said that the Bush v. Gore decision was the only SCOTUS decision that he couldn’t understand or respect. He even said that it was the only time in his life that he seriously considered flying down to DC to hold a protest sign in front of the Court reading, “For Shame.” He got ton of applause for that line.Report

  7. Avatar Jaybird says:

    Burt! A question!

    Above, Trumwill writes: “I take your comment to mean that the law was poorly defended. If it had been better defended, where do you think it might be in likelihood of surviving in full or in large part?”

    To what extent are judges allowed to rule on cases using arguments that neither side came even close to talking about? That is, if one side says “this is obviously covered by the Sixth Amendment and here’s why” and the other side says “this is obviously *NOT* covered by the Sixth Amendment and here’s why”, can judges make a ruling saying “the Sixth does not cover this issue but we’re ruling for the other guy because the Eighth does” or is that considered bad form?Report

    • Avatar Chad in reply to Jaybird says:

      Jaybird: The court has discretion to consider arguments not made by either party to the lawsuit or addressed by the courts below. Usually, but not always, the court will give the parties the opportunity to rebrief the case to address the new issues raised sua sponte by the court. This is what happened, in fact, with Citizens United.Report

      • Avatar Jaybird in reply to Chad says:

        So they can say, effectively, “come back in September and be prepared to argue about the 8th Amendment”?Report

        • Avatar Chad in reply to Jaybird says:

          Yes. Here’s an example of what such an order would look like:

          “Case No. 08-205 — Citizens United v. FEC, is set for re-argument later this term, on Wednesday, September 9, 2009, at 10 a.m. The parties should address the following question:
          For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), and the part of McConnell v. Federal Election Commission, 540 U. S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C. s 441b?”

    • Avatar Mark Thompson in reply to Jaybird says:

      Judges can do this; it’s called raising an argument sua sponte. As a practical matter, I don’t think it’s terribly common on the appellate level or (especially) the Supreme Court level. For the Supreme Court, the court is granting certiorari on a very specific question or group of questions, so there’s not likely to be much room to bring an argument up out of left field. There may be tweaks and supplements to an argument made by one of the parties or amici so that the decision can be made more narrowly or more broadly (as the case may be) but you’re not usually going to see an opportunity for an argument to be made up out of whole cloth. It’s not unheard of on the intermediate appellate level, at least in state courts; in my experience this often results in the court totally fishing the case up, or at least showing that the court misunderstands an element of the case. At the trial court level, I’ve seen it happen somewhat more often, with mixed results.

      Suffice to say, IMHO, as long as the attorneys are reasonably competent (admittedly a big “as long as”), a court raising an argument sua sponte is probably not something that should be encouraged.Report

      • Avatar Chad in reply to Mark Thompson says:

        I disagree with you somewhat, Mark. On the one hand, I agree that the Court’s activism in Citizens United is “something that should [not] be encouraged.”

        On the other hand, I see no reason for courts to limit themselves to arguments made by the parties. Here’s an example: A plaintiff brings a law suit under two different statutes. The defendant moves to dismiss, arguing that the statutes do not cover the conduct alleged. The court, in conducting its own independent research, discovers that (a) all the appellate courts to consider the first statute have held that it does not confer a private right of action, and (b) a third federal statute expressly bars the suit as brought under the second statute. [This is a real-life example from my experience as a federal judicial clerk, by the way.]

        Under such circumstances, I do not believe a court would be remiss in dismissing the case sua sponte (even if it does not give the parties a chance to rebrief the argument).Report

        • Avatar Mark Thompson in reply to Chad says:

          I’m not certain I’d characterize the Citizens United order you cite as raising an argument sua sponte. I realize that Toobin’s account suggests otherwise; however, Toobin’s account does not jive well with my recollection of the build up to that decision. Certainly his attempts to downplay it as being otherwise destined for obscurity and had a low profile until that order don’t remotely jibe with my recollection. The case was a cause celebre in libertarian and conservative circles from the moment the video was made; in fact the entire point of the video was to get charged with a violation of McCain-Feingold in order to have it ruled unconstitutional.

          As to your second point, let me make clear that I think courts should certainly have the right to go outside the arguments made by the parties; it is indeed sometimes absolutely necessary. My point is that it’s something that, in practice, tends to be pretty rare, and often when it is used, occurs because the court doesn’t understand the case. If the attorneys have done their jobs well (again, a big if), there shouldn’t be anything for the court to raise sua sponte.Report

          • Avatar Will H. in reply to Mark Thompson says:

            From what I can tell (and I admit, there are only certain types of cases that interest me enough to read about them), it’s summary judgments that are most often raised sua sponte by the court.Report

      • Avatar Jaybird in reply to Mark Thompson says:

        I admit to thinking about Scalia’s bullshit decision in Raich when I asked the question.Report

    • Avatar Burt Likko in reply to Jaybird says:

      I’ll take this a step further than Chad and Mark did — in all appellate cases, a Court is supposed to conduct independent review of the law and not merely rely on the briefs of the parties. Twice in my career I’ve had a court raise an issue or locate a case on its own that neither party had brought up, and then use the fruits of its own research as the fulcrum of its decision. The orders resulting from the court finding something unaddressed in the briefs usually do look something like what Chad illustrates above.Report

      • Avatar Jaybird in reply to Burt Likko says:

        I see this and I immediately start thinking that this is a gateway to judges ruling however the hell they want because there is a precedent for “however the hell they want” somewhere in the last 25 years *SOMEWHERE*.Report

    • Avatar Tom Van Dyke in reply to NoPublic says:

      The narrative is off here. The polls turning heavily against the Supreme Court starts in 2005.

      “Roughly 6 in 10 Americans approved of the Supreme Court from August 2000 through July 2003. Following decisions in 2003 overturning a Texas statute that had prohibited certain sexual acts, mainly between same-sex partners, and rejecting the University of Michigan’s use of a point system that included race as a factor for admission, Americans’ approval ratings of the court declined to 52% in September 2003 and remained at that level in 2004.

      In June 2005, after ruling on controversial cases involving government power to seize private property, medical marijuana, and the displaying of religious figures on government buildings, 42% approved and 48% disapproved of the court, easily its worst rating in the past eight years.

      The public’s assessment of the Supreme Court rebounded in 2005 to 56% and returned to 60% in last year’s [2006] Governance survey. However, the court’s approval rating has fallen back to the lower 50% range in two polls this year [2007].”

      TVD: The polls get even more disfavorable after 2007, but it does not seem Bush v. Gore is at the heart of this.

      Update, gentlemen. Reset.Report

  8. Avatar joey jo jo says:

    if chief justice harriet meiers came to pass, this suckfest farce of a judicial body would have already hit the event horizon.Report

  9. Avatar Kazzy says:

    What is the last court decision that came down 9-0 or 0-9? My guess is that most people know of only a handful of decision, often the most contentious and politicized. The don’t realize all the other cases that the court involves itself in, the ones they likely agree with, and that potentially have a far greater impact on their lives. If folks knew about all that, they might see it differently. Might.Report

      • Avatar Kazzy in reply to karl says:

        And my hunch is that most folks would A) agree with that decision and B) had no idea it happened. Myself included.Report

      • Avatar Scott in reply to karl says:


        As the article says the decision was on procedural grounds which is part of the reason why a 9-0 ruling was easier to achieve.

        On another note, I don’t understand why folks feel or think that unanimity is necessary or provides greater legitimacy.Report

        • Avatar Kazzy in reply to Scott says:

          I think it lessens the perception that their decisions are largely informed by politics. If justices of a similar political bend always vote the same way on issues and in ways that largely support their political leanings, you’ll never see a 9-0 decision, at least not with the current make-up.

          Other combinations, even 5-4 decisions that don’t fall along the typical party lines, would be a good thing.Report

    • I remember a while back reading some memoir that Rehnquist had written on his experiences on the court, and he claimed that more decisions than not have been either unanimous or near-unanimous. I don’t know what evidence (if any other than anecdote) he used or where his sample began or ended. But I do suspect that even today, a lot of cases are decided by unanimous or robust majorities. Alas, I’m too lazy to do the research.Report

  10. Avatar Kazzy says:

    And my hunch is that most folks would A) agree with that decision and B) had no idea it happened. Myself included.Report

  11. Avatar wardsmith says:

    Shamefacedly much of the commentary here ended up in my TL;DR category, but I wanted to post this link as a marker for further discussion later. As a Libertarian, I am in fundamental agreement with Greve’s thesis.Report

  12. Avatar M.A. says:

    For over 40 years, “conservatives” railed against the “liberal Supreme Court.” They’re still angry about it today, you can hear it every time one of them goes off on talk radio about “activist judges.”

    None of them ever had any respect for the court, because they have varying lists of decisions they disagree with. A lot of them sound like this in those “way too close to real life, humor” moments.

    The past decade’s drop is nominally the result of court-packing during the Bush administration, since conservatives already held little respect for the court. He nominated Roberts and Alito – but only after Harriet Miers was dropped from consideration. Previous presidents nominated jurists; Bush unabashedly nominated idealogues. When Obama nominated jurists, the response from the right wing was appalling. Sotomayor was called “a racist”, Elena Kagan “an ugly closet lesbian.”

    Obama was at least consistent on this point. His own remarks regarding Roberts, with emphasis added:
    …while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases – what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point…. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, … in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart…. The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.

    What’s destroying the court’s reputation today is that 5 percent of cases – almost always on the 5-4 split shoulders of the idealogues. But that’s not going to change by turning around to try to publicize cases where it’s a 9-0 slam dunk, because there are still plenty of horrible 9-0 decisions like Maryland v. Shatzer.Report

    • Avatar Jaybird in reply to M.A. says:

      It was Roe v. Wade. That’s the case that single-handedly created the Religious Right, split the Catholic vote (which was pretty reliably Democratic), and even created a rift in the left (I remember, as recently as the 80’s, there being debates about abortion in The Nation… we used to have a fairly vocal “religious left”).Report

      • Avatar Tod Kelly in reply to Jaybird says:

        I’m not so sure about this. Abortion as an issue 30 years ago is not what it is today.Report

        • Avatar Jaybird in reply to Tod Kelly says:

          Could you expand on that?

          I mean, check out the map here. I’ve no doubt whatsoever that the numbers 30 years ago were not what they are today either… I imagine that the debate has changed as the numbers have changed.Report

          • Avatar Tod Kelly in reply to Jaybird says:

            I mean that I don’t believe that the abortion issue has driven hostility between partisans, I think partisans have made abortion an increasingly divisive issue. Back in the time of Roe v Wade, for example, the life of the unborn child was barely considered – that argument being front and center is really a pretty new phenomena. The far bigger debate way back then between the religious right and the feminists was that a man had no say legally when it was his progeny that was at stake as well; similarly, the issue for the left was framed in choice, but it was a healthcare issue, not simply a right-of-choice for the sake of right-of-choice.

            Now how that interplays with the numbers I have no idea. But my sense isn’t that the abortion shouting matches created the culture wars, it’s that the culture wars created the abortion shouting matches.Report

            • “Acid, amnesty, abortion.” Steven Hayward, Feb 2000:

              Senator Bill Bradley professes to be shocked—shocked—to discover that Vice President Al Gore once had such a pro life voting record in the House of Representatives that the National Right to Life organization gave him an 84 percent approval rating. Yet the Vice President is equally shocked—shocked—at the idea that anyone should think him anything less than 100 percent pro-abortion, including supporting late-term, partial birth abortion. Meanwhile, many of the sophisticates in the news media think the Republicans seem too “extreme” because they keep dwelling on abortion in their candidate debates.

              The real shock is that the Democratic Party has moved so far over to one cultural extreme, while the Republicans have scarcely changed their views at all. It is commonplace to suppose that the Democratic Party became the party of “acid, amnesty, and abortion” with the George McGovern campaign in 1972, but in fact McGovern kept the right to abortion out of the otherwise far left Democratic platform in 1972. There must be regulating legislation for abortion, McGovern told Time magazine in June 1972. “You can’t just let anybody walk in and request an abortion,” McGovern said. The whole matter, he thought, should be left up to the state legislatures to decide, which is the default Republican position today. (And don’t forget, McGovern’s first choice for a running mate, Sen. Thomas Eagleton of Missouri, was a staunch pro-life Catholic. Anyone think a pro-life person could be a running mate on a Democratic ticket today?)

              McGovern was not the only liberal who felt queasy over abortion. “I am not for it,” Hubert Humphrey told audiences throughout the campaign of 1972. Sen. Edmund Muskie, the early Democratic front-runner, was even more direct in his opposition: “It compromises the sanctity of human life.” And then there was the prominent Democrat who said of abortion in 1973 that it is “too nice a word for something cold, like murder.” The author of these words was the Rev. Jesse Jackson.

              Republican opposition to abortion is typically ascribed to the party’s captivity to the religious right, whom veteran political reporter Jack Germond described this week in New Hampshire as “yahoos.” But symmetry would seem to demand that the pundits would recognize that the reason the Democratic Party now supports unlimited abortion-on-demand is that it is in thrall to the feminists, who are clearly the “yahoos” of the Left.

              The Democratic Party’s surrender to feminism was not an instantaneous affair. Again, in 1972 Muskie had Gloria Steinem thrown out of a press conference when she asked impertinent questions. “How did this girl get in here?”, Muskie bellowed. “Get her out of here!” Senator Gary Hart acquired a considerable reputation for his fondness for the fairer sex, but when he was McGovern’s campaign manager in 1972, he told a reporter: “Women don’t have the experience or ability to organize… Do you lower your standards in the midst of a campaign like in the midst of brain surgery and try to equalize social ills?”

              Likewise, the fealty both Bradley and Gore are paying to gay rights, such as Gore’s promise of imposing a litmus test requiring the Joint Chiefs of Staff to support gays in the military, represents a major departure from the liberalism of old. Theodore White records in The Making of the President 1972 that when a group of gay right activists picketed Muskie’s campaign headquarters, Muskie angrily said: “Goddamn it, if I have to be nice to a bunch of sodomites to be elected President, then f— it.” And McGovern watered down a gay rights plank in the Democratic platform at the infamous Miami convention.

              All of this is to suggest that it is not the Republicans who have a weakness for extremism, but the Democrats. The constancy of Republican opinions about major issues is one of the marvels of America. Don’t expect the media coverage of the campaign to reflect this, however. The major media, as repeated surveys have shown, are overwhelmingly in sympathy with the agenda of the cultural Left, which is why they are so often surprised and shocked on election day.

              Steven Hayward is senior fellow at the Pacific Research Institute, and an adjunct fellow of the Ashbrook Center at Ashland University.Report

              • Interesting – I’ve often wondered how Steven Hayward turned himself from a thoughtful and even-handed observer from the right of American political history into a predictable hack, and that piece gives a clue. He was able to think himself into the position that embracing social-cultural progress at all is “extreme,” meaning that remaining stuck in place would be “mainstream.” It may be so in the far reaches of the Amazon rainforests, I don’t know, but, approve or not, it seems an odd reading of American history.Report

              • Do you disagree with Hayward’s timeline, or was this just a driveby ad hom?Report

              • Avatar M.A. in reply to Tom Van Dyke says:

                I won’t disagree with the timeline. But I’m delighted to see that the Democrats have evolved beyond the level of homo neanderthalensis and would welcome the Tea Party should they choose to do so.

                Yes, I’m being insulting on this one, but I am insulted by Hayward’s key intimation that the march of progress – which stops child exploitation, gave women equal rights with men (for the most part, we’re still working on that whole equal-pay thing while watching neanderthals like Scalia make some incredibly vicious decisions that make sense only if you’re still living in the 1920s), created equal rights for all regardless of their skin color, and has made society generally recognize a societal responsibility to help those in need independent of their being gay, old, young, colored funny, or with some other funny handicap.

                The problem is not that the Democrats recognized that civil rights for all is important and made it a key part of their worldview. The problem is that Republicans don’t.Report

              • Avatar M.A. in reply to M.A. says:

                Is there any way to edit/fix items in a post? I forgot to close the /em tag around homo neanderthalensis.Report

              • Avatar Tom Van Dyke in reply to M.A. says:

                GOP = homo neanderthalensis? I suppose that was an attempt at wit.

                I just left.Report

              • Avatar M.A. in reply to M.A. says:

                GOP are still stuck in the days of clubbing women over the head and dragging them back to the cave, it seems. The most recent example is their blocking of legislation to allow workers to actually verify whether they’re being discriminated against in wages.

                It’s nothing new. I’m just noticing it more the more I hear GOP partisans on the radio. Quote of the day the other day, “Why should women need their own healthcare, shouldn’t their husband’s cover it or their parent’s?”Report

              • Avatar Will Truman in reply to M.A. says:

                Well, an upside to “homo neanderthalensis” is that it gives me an idea of who it’s not worth bothering to engage with on any broad level.Report

              • “ad hom”? That was the exact opposite of an “ad hom.” I disagree “with him” because of his argument, not the other way around.

                I don’t have any particular problem with his timeline, though it’s of course quite reductive and therefore susceptible to one-sided interpretation. Would he, or the 2000 Hayward, be happier if Democrats, or anybody, treated Muskie’s language on “sodomites” as acceptable? I can’t quite tell. I think he wants to occupy that sweet spot on the right where people who would be happier feel as validated as those who wouldn’t.Report

              • I’m not concerned with the writer either way. His point is correct, that the Dems veered from the mainstream, and they now they call what used to be their own mainstream “extreme.”

                Ted Kennedy and Jesse Jackson [and Al Gore] were each strongly pro-life. It’s entirely proper to believe they “evolved” on the issue out of political expediency rather than genuine conviction.

                As long as we have the timeline right, mileage of course varies. It wasn’t the right that veered, it was the left.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Your response, Mr. Van Dyke, merely re-asserts your, and Hayward’s, presumption, that “mainstream” in America means or can mean “unchanging,” while “right” or “conservative” seems to mean having your homophobic cake and eating it, too. If, instead, America is and always has been a moving target, then staying in that same old place would be “veering.” As for the pro-life argument, I don’t know whether Representative Gore, the 32-year-old Jesse Jackson, or Teddy Kennedy whenever personally cared very much one way or the other, but as professional demagogues they likely saw faking moral urgency to be more important than whatever they might sincerely have thought, both before and after they aborted their anti-abortion positions. They may even have been method politicians capable of earnestly believing today’s nonsense all the way down to their bones. It says something about where they thought their main constituencies were, especially in the periods before they fully nationalized their aspirations. It doesn’t say much of anything about where the real cultural “extreme” is or was.Report

              • Avatar M.A. in reply to CK MacLeod says:

                Democrats followed the mainstream and, more importantly, remained relatively true to the idea of equal rights for all.

                Republicans are still trying to re-fight the social battles of the 1950s and 1960s.

                Don’t worry, though. Anything the Democrats come up with is obviously a “communist plot” as Eugene used to say.Report

              • Actually, Mr. McLeod, I was clearing up the timeline and correcting a common misperception. My objection was formal.

                The question of whether the DemocratIC Party’s turn to acid, amnesty and abortion was good or bad is not worth either of us performing that ritual dance. And once “homophobic” gets tossed around like so much feces, I’m getting out of the way.

                As for abortion, recent polls are solidifying behind George McGovern’s position. I admit I consider it a return to sanity and to human decency.

                There must be regulating legislation for abortion, McGovern told Time magazine in June 1972. “You can’t just let anybody walk in and request an abortion,” McGovern said. The whole matter, he thought, should be left up to the state legislatures to decide, which is the default Republican position today. (And don’t forget, McGovern’s first choice for a running mate, Sen. Thomas Eagleton of Missouri, was a staunch pro-life Catholic. Anyone think a pro-life person could be a running mate on a Democratic ticket today?)

                McGovern was not the only liberal who felt queasy over abortion. “I am not for it,” Hubert Humphrey told audiences throughout the campaign of 1972. Sen. Edmund Muskie, the early Democratic front-runner, was even more direct in his opposition: “It compromises the sanctity of human life.” And then there was the prominent Democrat who said of abortion in 1973 that it is “too nice a word for something cold, like murder.” The author of these words was the Rev. Jesse Jackson.Report

          • Avatar Snarky McSnarksnark in reply to Jaybird says:

            Just to confirm what you’re saying, after the Roe v. Wade decision was handed down, it was endorsed by the Southern Baptist Convention.Report

            • Interesting. The So. Baptist Convention has since apologized to God and man for supporting abortion [2003].


              RESOLVED, That we lament and renounce statements and actions by previous Conventions and previous denominational leadership that offered support to the abortion culture; and be it further

              RESOLVED, That we humbly confess that the initial blindness of many in our Convention to the enormity of Roe v. Wade should serve as a warning to contemporary Southern Baptists of the subtlety of the spirit of the age in obscuring a biblical worldview; and be it further

              RESOLVED, That we urge our Southern Baptist churches to remain vigilant in the protection of human life by preaching the whole counsel of God on matters of human sexuality and the sanctity of life, by encouraging and empowering Southern Baptists to adopt unwanted children, by providing spiritual, emotional, and financial support for women in crisis pregnancies, and by calling on our government officials to take action to protect the lives of women and children; and be it further

              RESOLVED, That we express our appreciation to both houses of Congress for their passage of the Partial-Birth Abortion Ban Act of 2003, and we applaud President Bush for his commitment to sign this bill into law; and be it further

              RESOLVED, That we urge Congress to act swiftly to deliver this bill to President Bush for his signature; and be it finally

              RESOLVED, That we pray and work for the repeal of the Roe v. Wade decision and for the day when the act of abortion will be not only illegal, but also unthinkable.Report

      • Avatar Mike Schilling in reply to Jaybird says:

        The campaign to impeach Earl Warren and the actual effort by Jerry Ford to impeach William Douglas preceded Roe v. Wade.Report

      • Avatar M.A. in reply to Jaybird says:

        Roe v. Wade was 1973. The use of religion in politics to tar and feather the other side by the Republicans long precedes that.

        One of the principal notions of McCarthyism was that anyone of the left was necessarily “godless.” It was in the height of McCarthyism that the words “under god” were shoehorned into the Pledge of Allegiance, a rampant eyesore and auditory insult that still warps the meaning of the Pledge to this day.

        Some of the “leftist” ideas they opposed were child labor laws, women’s suffrage, the minimum wage, and unemployment relief. They’re still calling some of these “socialist” today, though they seem to have given up on opposing women’s suffrage in favor of suppressing women in other ways.Report

        • Avatar Scott in reply to M.A. says:


          No, the reaction wasn’t to the “left” but Communism which is “godless” by their own admission. It was another way to draw a distinction between the sides.Report

          • Avatar Tom Van Dyke in reply to Scott says:

            Oh, Scott, I wish you wouldn’t do this.Report

            • Avatar Scott in reply to Tom Van Dyke says:


              Is what I stated incorrect?Report

              • Avatar Will H. in reply to Scott says:

                It is correct.
                I remember my dad (a Vietnam vet) telling me that communists go to hell when you kill them because they don’t believe in God.
                I don’t think that’s a necessary element of communism per se, but more or less the manner in which it actualized large-scale.
                I believe Cuba is still very much Catholic.Report

              • Avatar Scott in reply to Will H. says:


                I’m not sure what you mean when you say, “necessary element” but I do believe that atheism was a core tenant of Communion, Lenin and the “opiate of masses” talk. Stalin did his best to stamp out the orthodox church but even he had to relent somewhat in the darkest days of ww2. Yes, the Cubans have tried to stamp out the church as well with mixed success.Report

  13. Scott, dueling sophomores makes both sides look bad and chokes out intelligent discussion, no matter who is more correct. I wish you wouldn’t, is all.Report

  14. I see the Court here as something of a stand-in for the entire judiciary and by extension of that, a proxy for the rule of law itself. The law and the courts through which the law translates into our real lives, must be considered worthy of our respect and trust else we stop being a nation under the rule of law and become something else, and I am wary of what that something might be.

    Not having read the study / poll, I would be curious to know how much its answers and analysis support the view that the reputation of the SC is “something of a stand-in for the entire judiciary and by extension of that, a proxy for the rule of law itself.”

    I’m speculating, but I assume that many (a few? a non-trivial number? a majority? most?) Americans see the SC as something distinct from federal courts. It seems to me that most news accounts that non-specialists (or people who are not court-and-politics-junkie laypersons like me) encounter read “the SC did this, the SC struck down such and such law, the SC says you can do this, the SC says you can’t do that.” These accounts, it seems to me, elevate the SC from a position as merely the supreme court over a series of courts to “the body that executes the laws by interpreting them and remaking them.”

    My point is, I wonder if people think of all the other courts as simply places where lawsuits are filed and criminals are tried and think of the SC as something different. They might not appreciate, or find interesting, the way in which state courts operate in the federal constitutional system, or the way in which district and appellate courts sometimes play a role in the way the law evolves that makes the SC’s job more complicated (and necessary).Report

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